Sloan v. Department of Housing & Urban Development

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2000 Decided November 14, 2000

No. 99-5146

Leon Sloan, Sr. and
Jimmie Lee Furby,
Appellants

v.

Department of Housing & Urban Development, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv00764)

James K. Kearney and Joseph L. Luciana, III argued the
cause for appellants. With them on the briefs were James P.
Gallatin, Jr., David T. Case, and A. Thomas Morris.

Scott S. Harris, Assistant United States Attorney, argued
the cause for appellees. With him on the brief were Wilma

A. Lewis, United States Attorney, and R. Craig Lawrence,
Assistant United States Attorney.

Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Appellants Leon Sloan, Sr. and
Jimmie Lee Furby were partners and owners of J&L Reno-
vation Company ("J&L"), a small demolition contracting com-
pany specializing in interior demolition. On August 18, 1995,
they received a notice from the United States Department of
Housing and Urban Development ("HUD") that the agency
was seeking debarment of Sloan, Furby, and J&L from
government contracting for a period of five years based upon
allegations of improper clean-up and disposal of waste at a
public housing construction site. HUD issued suspensions
pending a final determination on the debarment action. In
August 1996, a HUD Administrative Law Judge ("ALJ")
denied the five-year debarment and terminated the suspen-
sions. The ALJ, however, declined to void the suspensions ab
initio, and the Secretary of HUD affirmed this decision.

Sloan and Furby sought relief in the District Court, claim-
ing that the agency's failure to void the suspensions ab initio
violated the Administrative Procedure Act ("APA"), and that
the actions of various HUD officials deprived them of due
process. In a second complaint against individual HUD
officials, Sloan and Furby sought damages under Bivens v.
Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The District Court, after
consolidating the cases, entered an order dismissing the
consolidated complaint. In a related, unconsolidated case,
Sloan and Furby brought claims pursuant to the Federal Tort
Claims Act ("FTCA"). Appellants' FTCA claims are the
subject of a separate appeal, Sloan v. United States Depart-
ment of Housing and Urban Development, No. 99-5145,
heard on the same day as this case.

Appellants raise two principal issues in the instant appeal.
Appellants' first claim is that HUD's refusal to void their

suspensions ab initio was arbitrary and capricious. Appellee
HUD contends that there was ample evidence to support the
suspensions at the time they were imposed, as well as when
the case was heard by the ALJ. We disagree. HUD origi-
nally had based the issuance of the suspensions on three
distinct charges. The debarment proceeding conclusively
revealed that the first and third charges--relating to hazard-
ous waste containment--were completely unsupported. Fur-
thermore, the ALJ did not find, and HUD does not argue,
that the second charge alone--relating to improper disposal
of construction debris--would have supported issuance of the
suspensions. Finally, the Secretary's decision is devoid of
any good reason to justify the denial of the relief sought by
appellants. On this record, we hold that the agency's failure
to void the suspensions ab initio was arbitrary and capricious.

Appellants' second claim challenges the District Court's
finding that the APA's comprehensive remedial structure
precludes recognition of appellants' Bivens claims. We need
not reach this issue, however, because we reject appellants'
claim that individual HUD defendants violated their constitu-
tional rights to due process in conducting and supervising the
investigations and prosecution associated with the suspen-
sions and debarment proceedings. We therefore affirm the
judgment of the District Court dismissing the Bivens claims.

I. Background

A. Factual Background

In 1989, the Allegheny County Housing Authority
("ACHA") received funds from HUD to perform moderniza-
tion work at the Burns Heights public housing project in
Duquesne, Pennsylvania. Part of the funding was intended
for lead-based paint testing at the site. Because a previous
x-ray fluorescence ("XRF") test for lead-based paint had
proven inconclusive, ACHA prepared specifications calling for
the demolition contractor to assume all existing painted sur-
faces contained lead-based paint.

 In November 1992, Mistick Construction, PBT ("Mistick"),
in conjunction with its bid for demolition work at Burns
Heights, reviewed ACHA's XRF test and hired an industrial
hygienist to perform a toxic characteristic leaching procedure
("TCLP") test of Burns Heights wall debris. The TCLP test
established that the lead content of the wall debris was
substantially less than the United States Environmental Pro-
tection Agency ("EPA") threshold for hazardous waste.
ACHA subsequently hired Mistick to perform the demolition
work.

In January 1993, before beginning the demolition work,
Mistick conducted a test of the air inside the Burns Heights
buildings to determine whether hazardous levels of lead were
present. The air test results indicated that lead levels were
significantly less than the Occupational Safety & Health
Administration ("OSHA") limit; Mistick therefore concluded
that OSHA worker protection requirements need not be
followed when work was done on the site. Mistick provided
the TCLP and air test results to ACHA, and ACHA con-
firmed that hazardous lead-based paint protocols were not
required for demolition work at Burns Heights. The parties
agreed, in writing, that the test results were "well within
EPA guidelines" and that demolition waste from Burns
Heights need not be disposed of as contaminated waste.
Mistick Inc. Proposed Hazardous Materials Work Plan for
the Burns Heights Project (Jan. 7, 1993), reprinted in Appen-
dix ("App.") 416, 419.

In February 1993, Mistick subcontracted the interior demo-
lition work at Burns Heights to J&L, the company owned by
appellants Sloan and Furby. From February 1993 until May
1995, when J&L completed its demolition work, J&L disposed
of most of its demolition debris in dumpsters provided by
Mistick. For a period beginning in 1994, however, J&L
began separating plaster from other demolition debris and
delivering it to an unapproved landfill (the "Perrone site").
Under the then applicable Pennsylvania regulations, plaster
was defined as construction/demolition waste which had to be
dumped in an approved landfill. See 25 Pa. Code s 271.1
(1999) (adopted April 8, 1988, effective April 9, 1988). Appel-

lants were unaware of the change in state regulations. See
Matter of Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107-
D4, 96-C-108-D5, 1996 WL 506267 (H.U.D.B.C.A. Aug. 30,
1996) (ALJ determination) (finding that appellants "would not
have dumped the plaster debris in an unapproved landfill if
they had been aware of the change in state regulations").

Upon discovering that a rival construction group was fol-
lowing and taping J&L's dumping activities, Mistick request-
ed J&L to discontinue disposing of plaster at the unapproved
site, which J&L did. Mistick subsequently informed the
Pennsylvania Department of Environmental Protection
("Pennsylvania DEP") of the placement of plaster at the
Perrone site. The Pennsylvania DEP determined that no
action was required.

In November 1994, during an unrelated HUD debarment
proceeding, HUD received information that Mistick was not
properly performing lead-based paint abatement at Burns
Heights. Thereafter, two HUD officials, Mark Chandler, an
auditor in HUD's Office of Inspector General, and Dane
Narode, an attorney from HUD's Office of Public and Indian
Housing, began investigating the demolition work at Burns
Heights. Chandler conducted the performance audit.

Chandler and Narode visited the Perrone site, where they
observed paint chips resembling those from the Burns
Heights project before allegedly being chased from the site
by its owner. Chandler and Narode also visited Burns
Heights where they photographed J&L's failure to contain
dirt, dust, and paint chips. Chandler then spoke with Furby
on the telephone and also met with David McLean, Director
of Maintenance and Development for ACHA. During the
latter conversation, McLean mistakenly indicated that Burns
Heights was an ACHA lead-based paint project. Chandler
did not inquire as to whether there were hazardous levels of
lead at Burns Heights nor whether lead-based paint abate-
ment was being performed there.

Subsequent to his meeting with McLean, Chandler received
from ACHA copies of the XRF test, the November 1992
TCLP test, and the January 1993 air test. These tests

clearly indicated that there were no hazardous levels of lead
present at Burns Heights, but Chandler was not qualified to
interpret or evaluate the test results. Amazingly, Chandler
did not ask either ACHA or Mistick what the test results
meant and he never spoke to Mistick or J&L about whether
the subcontract covered lead-based paint abatement. Chan-
dler's final audit report, which was sent to HUD's Pittsburgh
Area Office on October 18, 1995, stated, without good basis,
that Mistick and J&L had failed to properly perform lead-
based paint abatement; on this erroneous finding, Chandler's
report concluded that Mistick and J&L had not performed
demolition work at Burns Heights in accordance with contrac-
tual requirements.

B. Administrative Proceedings

On August 18, 1995, three months after the demolition
work at Burns Heights had been completed, Assistant Secre-
tary for Public and Indian Housing Joseph Shuldiner noti-
fied Sloan and Furby that they were suspended from all
HUD-related government contracting work and that HUD
was seeking a five-year debarment from participation in
HUD-funded construction work. The notice asserted that
the Department had information "indicating serious irregu-
larities in [J&L's] business dealings with the Government,"
namely: (1) improper cleanup of waste from the lead-based
paint abatement process; (2) improper disposal of construc-
tion debris from the demolition; and (3) failure to adhere to
contract requirements or HUD Guidelines by allowing haz-
ardous waste to be tracked outside of containment and al-
lowing workers to perform abatement work without proper
notification. See Letters from Joseph Shuldner, Assistant
Secretary, HUD, to Jimmie L. Furby, Leon Sloan, Sr., and
J&L Renovation Company (Aug. 18, 1995), reprinted in App.
151, 153, 155. George Dickey, a HUD Program Official in
the Office for Public and Indian Housing, processed the
sanctions against Mistick and J&L.

Appellants contend that, during discovery for the debar-
ment proceeding, they requested depositions of Assistant
Secretary Shuldiner and Dickey. HUD opposed the deposi-

tions and the ALJ denied the requests. Appellants also aver
that, during discovery, HUD failed to produce an exchange of
letters confirming that ACHA did not find "sufficient grounds
to pursue a claim for non-performance, and that contamina-
tion and associated costs are non-existent." See Letter from
George Arendas, Executive Director, ACHA, to Paul LaMar-
ca, HUD Pittsburgh Area Office (Jan. 17, 1995), reprinted in
App. 174. Appellants argue that the failure to produce these
"exculpatory documents" hindered their efforts at the debar-
ment proceeding. See Appellants' Br. at 14.

On August 30, 1996, after a five-day administrative hearing,
the ALJ rejected the Government's case seeking debarment
and terminated the suspensions against J&L, Sloan, and
Furby. Matter of Sloan, 1996 WL 506267 (ALJ determina-
tion). The ALJ specifically found that "there was not a lead
hazard present at Burns Heights that would have made lead-
based paint abatement protocols necessary." Id. The ALJ,
however, denied Sloan and Furby's request to have their
suspensions voided ab initio. The ALJ's decision not to void
the suspensions ab initio was based on an erroneous finding
that the written contract documents required Mistick to treat
the job as though there were hazardous levels of lead present
at Burns Heights. See id. After unsuccessfully appealing
the ALJ's ruling to the HUD Secretary, Sloan and Furby
filed suit in the District Court.

II. Analysis

A. The APA challenge

The disputed suspension and debarment actions in this case
arose pursuant to the federal regulations implementing sec-
tion 3 of Executive Order 12549, 51 Fed. Reg. 6370 (1986),
which provides that, to the extent permitted by law, Execu-
tive departments and agencies shall participate in a govern-
ment-wide system for nonprocurement debarment and sus-
pension. 24 C.F.R. s 24.100(a) & (b) (1995). Under the
applicable regulations, debarment and suspension are discre-
tionary measures taken to protect the public interest and to
promote an agency's policy of "conduct[ing] business only

with responsible persons." 24 C.F.R. s 24.115(a) (1995).
The issuance of a suspension is a "serious action," hence it
"may be imposed only when: (1) [t]here exists adequate
evidence of one or more of the causes set out in s 24.405, and
(2) [i]mmediate action is necessary to protect the public
interest." 24 C.F.R. s 24.400(b) (1995); see also 24 C.F.R.
s 24.405 (1995). A party who contests a suspension or possi-
ble debarment may request a hearing before an ALJ pursu-
ant to 24 C.F.R. s 24.313 (1995), followed by an appeal to and
discretionary review by the Secretary pursuant to 24 C.F.R.
s 24.314(c) (1995). Any review taken by the Secretary "shall
be based on the record of the initial hearing [before the ALJ]
and shall fully recite the evidentiary grounds upon which the
Secretary's determination is made." 24 C.F.R. s 24.314(e)
(1995).

The parties agree that judicial review of the Secretary's
final decision in this case is available pursuant to the Adminis-
trative Procedure Act ("APA"), 5 U.S.C. ss 702, 704, 706
(1994). Appellants contend that the agency's refusal to void
their suspensions ab initio was arbitrary and capricious and
thus violated s 706(2)(A) of the APA, and that the agency's
administrative procedures infringed their due process rights
in violation of s 706(2)(B) of the APA. We find merit in
appellants' first claim.

Neither party contests the applicability of the APA's "arbi-
trary and capricious" standard. Appellee urges, nonetheless,
that our review of HUD's decision in the instant case should
be "highly deferential," and "presume the validity of agency
action." See Appellees' Br. at 15 (quoting Kisser v. Cisneros,
14 F.3d 615, 618 (D.C. Cir. 1994)). It is well-established that,
when conducting review under the "arbitrary and capricious"
standard, a court may not substitute its judgment for that of
agency officials; rather, our inquiry is focused on whether
"the agency [ ] examine[d] the relevant data and articulate[d]
a satisfactory explanation for its action including a 'rational
connection between the facts found and the choice made.' "
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962)). Our deference to

agency decisionmaking does not require us, however, to coun-
tenance an agency's failure to "consider[ ] ... relevant fac-
tors" or "clear error[s] of judgment." Id. (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 285 (1974)).

On the basis of the record before us, we find that HUD's
decision not to void the suspensions ab initio cannot with-
stand review, because the decision cannot be squared with the
applicable regulations and, also, because the decisions of the
ALJ and the Secretary fail to "articulate a satisfactory expla-
nation for [the agency's] action including a 'rational connec-
tion between the facts found and the choice made.' " State
Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc.,
371 U.S. at 168).

Under the applicable regulations, a suspension is justified
only when there is "adequate evidence" of wrongdoing and
"immediate action is necessary to protect the public interest."
24 C.F.R. s 24.400(b). "In assessing the adequacy of the
evidence, the agency should consider how much information is
available, how credible it is given the circumstances, whether
or not important allegations are corroborated, and what infer-
ences can reasonably be drawn as a result." 24 C.F.R.
s 24.400(c) (1995). Moreover, the agency's "assessment
should include an examination of basic documents such as
grants, cooperative agreements, loan authorizations, and con-
tracts." Id. In applying these regulations, the ALJ and the
Secretary are required to consider both whether there is
adequate justification for the suspensions at the time they are
issued, and whether, in light of the evidence adduced at the
debarment hearing, there is good reason to terminate the
suspensions. See 24 C.F.R. ss 24.313, 24.314 (1995).

Many years ago, in Horne Brothers, Inc. v. Laird, 463 F.2d
1268 (D.C. Cir. 1972), Judge Leventhal had occasion to con-
strue what it means for an agency to have "adequate evi-
dence" to justify the "suspension" of a government contrac-
tor:

The "adequate evidence" showing need not be the kind
necessary for a successful criminal prosecution or a

 formal debarment. The matter may be likened to the
probable cause necessary for an arrest, a search warrant,
or a preliminary hearing. This is less than must be
shown at the trial, but it must be more than uncorrob-
orated suspicion or accusation.

Id. at 1271. Obviously, as Horne Brothers suggests, "[a]
question of judgment is involved" in any agency decision
to issue a suspension. Id. What is noteworthy here, how-
ever, is that, under the controlling regulations, there can
be no suspension without "adequate evidence," the necessi-
ty of "immediate action...to protect the public interest," a
consideration of "whether or not important allegations are
corroborated," "an examination of basic documents," and a
determination, based on "all available evidence," that rea-
sonable inferences of wrongdoing can be drawn. 24
C.F.R. ss 24.400, 24.410 (1995).

At the hearing before the ALJ, the Government withdrew
the third ground for debarment and suspension--failure to
adhere to contract requirements or HUD Guidelines--recog-
nizing that the agency had nothing concrete upon which to
justify this charge. The ALJ subsequently dismissed the
first charge--improper cleanup of waste from the lead-based
paint abatement process--finding no basis in the record.
Matter of Sloan, 1996 WL 506267 (ALJ determination). This
left only the charge that J&L had improperly disposed of
construction debris from the demolition. The ALJ did not
find, and appellee does not argue, that this single remaining
charge provided cause for the suspensions. Rather, appellee
asserts that the decision not to void the suspensions ab initio
should be upheld because the administrative judge found
appellants and Mistick largely to blame for the misunder-
standings leading to the faulty audit and resulting sanctions.
The suggestion that appellants should bear the onus of
HUD's poor investigatory work is ridiculous. Had HUD
officials been more precise in their investigation, they would
have discovered that the November 1992 TCLP test and the
January 1993 air test clearly established that there were no
hazardous levels of lead present at Burns Heights. The

auditor had only to examine the test results or request
assistance with their interpretation.

We also reject appellee's related argument, that the deci-
sion not to void the suspensions ab initio rests on the ALJ's
conclusion that government investigators had been misled
into thinking that lead abatement was part of the disputed
contract because the change in contract specification regard-
ing lead abatement had not been captured in a written
amendment. See Appellees' Br. at 20-21. The ALJ's finding
on this point is simply wrong; the record is clear that the
parties had agreed in writing that demolition waste from
Burns Heights need not need be disposed of as contaminated
waste. See Mistick Inc. Proposed Hazardous Materials Work
Plan for the Burns Heights Project, reprinted in App. 416,
419 (Jan. 7, 1993).

Whatever agency officials may have thought about the case
against the appellants when the suspensions were issued,
their view of the case should have changed rather dramatical-
ly following the hearing before the ALJ. The hearing made
it clear that the initial finding of probable cause was flimsy at
best, riding on the heels of a hastily-conducted and technical-
ly-flawed audit. In other words, even if HUD officials
thought they had more than "uncorroborated suspicion or
accusation" at the time when the suspensions were issued, it
was abundantly clear at the conclusion of the hearing that
there had been no basis at the outset to suspend appellants.
It was therefore arbitrary and capricious for the agency to
deny full relief to appellants.

Government contracting has become an economic mainstay
for a number of commercial enterprises. It goes without
saying, therefore, that disqualification from government con-
tracting is a very serious matter for these businesses. See
Gonzalez v. Freeman, 334 F.2d 570, 574 & n.5 (D.C. Cir.
1964). In this case, appellants have endured economic losses,
professional indignities, and injuries to their reputations, and
these sufferings no doubt will continue to linger so long as
appellants are tarnished by an official record suggesting that
they engaged in "serious irregularities" in their business

dealings with the Government. Even the applicable regula-
tions recognize the potentially harsh consequences that flow
from suspension, for they make it clear that "[s]uspension is a
serious action" that should be imposed only "when it has been
determined that immediate action is necessary to protect the
Government's interest." 24 C.F.R. s 24.410(c).

In this case, appellants' claim for relief was sufficiently
compelling that the Secretary granted review specifically to
consider the following question: "Under what circumstances
is it appropriate for the Secretarial designee to void a suspen-
sion ab initio when, in hindsight, it is clear that the Respon-
dents are not guilty of the charges that led to the suspen-
sion?" Matter of Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-
107-D4, 96-C-108-D5 (Nov. 18, 1996) (order granting respon-
dent's petition for secretarial review); see also Matter of
Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107-D4, 96-C-
108-D5 (Dec. 18, 1996) (order on Secretarial review), reprint-
ed in App. 452 n.1. It is not surprising that the Secretary
accepted discretionary review of the appellants' administra-
tive appeal, for the Secretary's decision does not doubt the
availability of the relief sought by appellants. See Matter of
Guillen, HUDBCA No. 91-1739-DB, 1992 WL 45853
(H.U.D.B.C.A. Feb. 28, 1992) (ALJ determination). What is
surprising, however, is the Secretary's treatment of appel-
lants' claim.

It is clear that there was no need for "immediate action" to
be taken against appellants. See 24 C.F.R. s 24.400(b)(2).
The Secretary's decision does not suggest that appellants
should have been suspended for the allegations that prompted
the first and third charges. And the Secretary acknowledges
that appellants' alleged improper activity in connection with
the second charge--placing debris in an unapproved landfill--
had ceased before the issuance of the suspensions. In other
words, the Secretary could not find that there was adequate
evidence that appellants lacked "present responsibility" when
the suspensions were issued. Nonetheless, the Secretary's
decision suggests that appellants' "past irresponsible acts" in
connection with the second charge justified the suspensions.
See Matter of Sloan (order on Secretarial review), reprinted

in App. 454. This is a specious conclusion. First, the
Secretary's decision simply ignores the requirement that
there must be a real need for immediate action to protect the
public interest in order to justify a suspension. Further-
more, as noted above, the Government does not contend that
the second charge against appellants, without more, could
have warranted suspensions, so the Secretary's reason for
refusing to void the suspensions ab initio makes no sense.

The Secretary's decision is at best a half-hearted attempt
to address appellants' claim for relief. And, as is true with
portions of the ALJ's decision, the Secretary's decision seems
to blame the appellants for the blunders committed by agency
investigators. In short, the decision fails to "articulate a
satisfactory explanation for [the agency's] action including a
'rational connection between the facts found and the choice
made.' " State Farm, 463 U.S. at 43 (quoting Burlington
Truck Lines, Inc., 371 U.S. at 168). Accordingly, we find the
agency's action to be arbitrary and capricious.

Because we find that the decision not to void the suspen-
sions ab initio was arbitrary and capricious, we need not
linger on appellants' alternative argument that HUD violated
the due process rights of Sloan and Furby by failing to
produce critical witnesses and HUD documents. "An agency
may not impose even a temporary suspension without provid-
ing the 'core requirements' of due process: adequate notice
and a meaningful hearing." Commercial Drapery Contrac-
tors, Inc. v. United States, 133 F.3d 1, 6 (D.C. Cir. 1998); see
also Reeve Aleutian Airways, Inc. v. United States, 982 F.2d
594, 595, 599-602 (D.C. Cir. 1993). In the instant case, the
procedures followed by HUD adequately safeguarded appel-
lants' due process rights.

B. The Bivens claims

In asserting their Bivens claims for money damages
against individual HUD defendants, appellants charge that
HUD officials violated their due process rights in conducting
and supervising the audit, processing and issuing the sanc-
tions, and prosecuting the suspensions. The District Court
held that any Bivens remedy was precluded by the availabili-

ty of relief under the APA. Examining the APA, the District
Court found it to be a comprehensive remedial scheme for
administering public rights which did not inadvertently omit
damage remedies for certain claimants.

We need not decide whether the APA precludes appellants'
Bivens claims, because we find that appellants have failed to
allege the violation of a constitutional right. The focus here,
in contrast to the APA claim, is on the investigation into
appellants' alleged misdeeds as well as the decisions to pro-
cess and enforce the administrative sanctions--not the result-
ing records of suspension. Indeed, with the exception of the
claim against Attorney Narode for prosecution of the adminis-
trative action, all of appellants' Bivens claims center mainly
on the investigations conducted before the administrative
hearing.

Appellants maintain that the disputed investigations and
prosecution by government officials violated their due process
rights. The law is clear, however, that "there is no constitu-
tional right to be free of investigation," United States v.
Trayer, 898 F.2d 805, 808 (D.C. Cir.), cert. denied, 498 U.S.
839 (1990), and appellants have not shown that the investiga-
tion was part of a scheme or conspiracy to deprive them of
their constitutional rights. See, e.g., Anthony v. Baker, 767
F.2d 657, 662 (10th Cir. 1985).

Appellants contend that individual HUD employees contra-
vened the broad standards incorporated in HUD's Consolidat-
ed Audit Guide for Audits of HUD Programs, but these
alleged violations do not support a claim for denial of due
process. See, e.g., Schweiker v. Hansen, 450 U.S. 785, 789,
reh'g denied, 451 U.S. 1032 (1981) (stating that Social Securi-
ty Administration claims manual, as opposed to official regu-
lations, had no legal force); Kugel v. United States, 947 F.2d
1504, 1507 (D.C. Cir. 1991) (department guidelines "do not
create a duty in favor of the general public"); Lynch v.
United States Parole Comm'n, 768 F.2d 491, 497 (2d Cir.
1985) (finding that Police Commission internal procedures
manual did not create due process rights enforceable in
court). We therefore conclude that the errors committed by

HUD officials during their investigation of appellants did not
rise to the level of constitutional infringement.

Furthermore, as noted above, appellants were given clear
notice of the charges against them and a fair opportunity to
prepare a defense; they were then afforded extensive rights
to a full hearing before an ALJ, during which the Govern-
ment carried the burden of proof, followed by an appeal to
the Secretary and then judicial review. In other words, they
were given a full panoply of due process protections to
redress any preceding mistakes that may have occurred
during the agency investigations. Assuming, arguendo, that
appellants had cognizable property or liberty interests justify-
ing due process protections, see, e.g., Old Dominion Dairy
Prods. v. Secretary of Defense, 631 F.2d 953 (D.C. Cir. 1980),
the postdeprivation procedures provided under HUD regula-
tions were more than enough to satisfy the requirements of
procedural due process. See Hudson v. Palmer, 468 U.S.
517, 533 (1984); see also Stuto v. Fleishman, 164 F.3d 820,
825 (2d Cir. 1999) (quoting Hudson, 468 U.S. at 533) ("[T]he
negligent or intentional deprivation of property through the
random and unauthorized acts of a state or federal employee
does not constitute a deprivation of due process if 'a meaning-
ful postdeprivation remedy for the loss is available.' ").

Finally, appellants' claims against Attorney Narode for
prosecution of the administrative sanctions fail because of
absolute immunity. See Butz v. Economou, 438 U.S. 478,
516-17 (1978); Imbler v. Pachtman, 424 U.S. 409, 424-29
(1976). In Butz, the Court held that, in general, federal
executive officials charged with constitutional violations were
entitled only to qualified immunity. See Butz, 438 U.S. at
507. The Court noted, however, that there were "some
officials whose special functions require[d] a full exemption
from liability," id. at 508, and observed that the adjudicatory
process within federal administrative agencies "share[d]
enough of the characteristics of the judicial process that those
who participate in such adjudication should also be immune
from suits for damages." Id. at 512-13. Finding "no sub-
stantial difference between the function of the agency attor-
ney in presenting evidence in an agency hearing and the

function of the prosecutor who brings evidence before a
court," id. at 516, the Court granted absolute immunity to
federal attorneys whose duties in administrative proceedings
were functionally similar to those of a prosecutor. See id. at
517. We recognize a fortiori that the actions taken to enforce
the sanctions against Sloan and Furby, such as presenting
evidence at the administrative hearing, deserve no less pro-
tection from suit.

In view of our conclusion that appellants have not alleged
the violation of a constitutional right, we need not determine
whether appellants' Bivens claims are precluded by the APA.
This court has suggested that a Bivens action may be fore-
closed where the possibility of judicial review under the APA,
along with other "statutes, executive orders and regulations,"
provides a meaningful remedy. Krodel v. Young, 748 F.2d
701, 712-13 & 712 n.6 (D.C. Cir. 1984), cert. denied, 474 U.S.
817 (1985). The Government, however, did not suggest that
Krodel was applicable here.

III. Conclusion

For the foregoing reasons, the judgment of the District
Court is affirmed in part and reversed in part. The agency's
refusal to void appellants' suspensions ab initio was arbitrary
and capricious and is accordingly reversed. The case is
hereby remanded to the agency with instructions to make
void appellants' suspensions ab initio.

So ordered.